Peo v. Shockey - Order Affirmed

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March 26, 2026 Get Citation Alerts Download PDF Add Note

Peo v. Shockey

Colorado Court of Appeals

• Citations: None known
• Docket Number: 24CA0926

• Precedential Status: Non-Precedential

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (3.3K)

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Combined Opinion

24CA0926 Peo v Shockey 03-26-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0926
City and County of Denver District Court No. 17CR7042
Honorable Ericka F.H. Englert, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jacob A. Shockey,

Defendant-Appellant.

ORDER AFFIRMED

Division V
Opinion by JUDGE WELLING
Tow and Lipinsky, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 26, 2026

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Tanja Heggins, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1 Defendant, Jacob A. Shockey, appeals the postconviction

court’s order denying his Crim. P. 35(c) petition for postconviction

relief without an evidentiary hearing. We affirm.

I. Background

¶2 Shockey was charged with (1) criminal attempt to commit

murder in the first degree; (2) assault in the first degree;

(3) possession with intent to manufacture or distribute a controlled

substance; and (4) possession of a weapon by a previous offender.

The People later added two crime of violence sentence enhancers.

Pursuant to a plea agreement, Shockey pleaded guilty to count

two — assault in the first degree — and the People dismissed the

remaining counts. On June 1, 2018, the district court sentenced

him to twenty years in the custody of the Department of

Corrections. Shockey didn’t directly appeal his conviction or

sentence.

¶3 On August 8, 2022, Shockey filed a pro se petition for

postconviction relief under Crim. P. 35(c), asserting that his plea

counsel was ineffective because he had promised Shockey that he

would file a Crim. P. 35(b) motion to reduce his sentence after

Shockey pleaded guilty, but that plea counsel never did so.

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Shockey attached to the petition a letter dated August 20, 2021,

that his counsel had sent him. The letter said in its entirety, as

follows:

I received your letter about a 35b in the
Denver case I represented you in. I apologize, I
never filed it. From what I remember you still
had to deal with your F1 in Arapahoe and we
didn’t know what was going to happen.
Because I failed to file your 35b though, you
should be able to file a 35c ineffective
assistance of counsel against me and get your
35b that way. Attached are the forms you
need to fill out and mail to the Denver court.
Your Denver case # was 17CR7042. Mail the
form to Division 5A of the Denver District
Court at 520 W. Colfax Ave, Denver, CO
80204. Let me know if there is anything else I
can do to help. Good luck with everything
going forward.

¶4 In his petition, Shockey checked the box indicating that his

petition was untimely but that the justifiable excuse or excusable

neglect exception applied. He further explained that he had “only

just recently found out that there are time lines for such matters”

because he was “law dumb.” He explained that, had he known his

counsel wouldn’t file the Crim. P. 35(b) motion, he “wouldn’t [have]

felt pressured into agreeing with the plea agreement” and he

pleaded guilty because his counsel had said he would file a Crim. P.

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35(b) motion. In turn, he asked that the plea agreement be voided

and that he be permitted to withdraw his guilty plea.

¶5 A week later, the postconviction court entered an order

appointing postconviction counsel “for the purpose of pursuing and

presenting an ineffective assistance of counsel claim regarding [plea

counsel’s] failure to file a 35(b) motion.” On October 24, 2023,

postconviction counsel filed a supplemental petition requesting that

the postconviction court (1) find that Shockey’s pro se petition was

timely filed and (2) conduct an evidentiary hearing on the pro se

petition. After the People filed a response, the postconviction court

entered an order denying Shockey’s petition without a hearing

because he hadn’t adequately alleged facts that, if true, established

(1) justifiable excuse or excusable neglect to allow his untimely

filing or (2) that he was prejudiced by his plea counsel’s deficient

performance.

II. Standard of Review and Legal Principles

¶6 We review de novo a district court’s denial of a Crim. P. 35(c)

petition without a hearing. People v. Medina, 2019 COA 103M, ¶ 4.

Once a district court refers the matter to counsel, it can

nevertheless deny the motion without a hearing if “based on the

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pleadings, the court finds that it is appropriate to enter a ruling

containing written findings of fact and conclusions of law.” Crim. P.

35(c)(3)(V).

¶7 A Crim. P. 35(c) petition must be filed within three years of a

defendant’s conviction for a felony offense other than a class 1

felony. § 16-5-402(1), C.R.S. 2025. When, as here, there was no

direct appeal, a conviction is final on the date the district court

imposed the sentence. See People v. Collier, 151 P.3d 668, 671

(Colo. App. 2006). But there is an exception to the three-year

limitations period if a defendant establishes that his “failure to seek

relief within the applicable time period was the result of

circumstances amounting to justifiable excuse or excusable

neglect.” § 16-5-402(2)(d). Factors that a court should consider in

determining whether a defendant has established justifiable excuse

or excusable neglect, include

(1) whether there existed circumstances or
outside influences preventing a challenge to a
prior conviction; (2) whether a defendant
having reason to question the constitutionality
of a conviction investigates its validity and
takes advantage of avenues of relief that are
available; (3) whether a defendant either knew
that the conviction was constitutionally infirm
or had reason to question its validity;

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(4) whether a defendant had other means of
preventing the government’s use of the
conviction so that a post-conviction challenge
was previously unnecessary; (5) the length of
time that has elapsed between the date of
conviction and defendant’s challenge; and
(6) the effect that such period has on the
state’s ability to defend against the challenge.

People v. Vigil, 983 P.2d 805, 809-10 (Colo. App. 1999) (citing

People v. Wiedemer, 852 P.2d 424, 441-42 (Colo. 1993)).

¶8 “[A] Crim.[ ]P. 35(c) motion must allege facts that if true would

establish justifiable excuse or excusable neglect in order to entitle

the moving party to a hearing on the applicability of this exception

to the time bar of § 16-5-402(1).” Wiedemer, 852 P.2d at 440 n.15.

Ineffective assistance can amount to justifiable excuse or excusable

neglect when counsel’s ineffectiveness prevents the defendant from

pursuing a timely claim for postconviction relief. People v. Martinez-

Huerta, 2015 COA 69, ¶ 21. But a defendant attempting to show

justifiable excuse or excusable neglect must account for the entire

period up to the filing of the untimely claim. See Wiedemer, 852

P.2d at 441.

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III. Analysis

¶9 We agree with the postconviction court that Shockey’s Crim.

P. 35(c) petition was untimely and that he didn’t allege facts in his

pro se petition or supplemental petition that, if true, established

justifiable excuse or excusable neglect. We therefore affirm.

¶ 10 It’s not disputed that Shockey filed his petition after the three-

year deadline for doing so had passed. The district court sentenced

Shockey on June 1, 2018. Shockey filed his pro se petition for

postconviction relief pursuant to Crim. P. 35(c) on August 8, 2022,

more than four years and two months later. He, therefore, missed

the statutory deadline to file his petition by approximately one year

and two months. § 16-5-402(1).

¶ 11 Moreover, Shockey didn’t allege facts that, even if true,

established justifiable excuse or excusable neglect to entitle him to

a hearing on whether this exception to the three-year time bar

applied. See Wiedemer, 852 P.2d at 440 n.15.

¶ 12 For the purpose of our analysis, we assume that Shockey

adequately alleged facts that, if true, would explain his failure to file

his Crim. P. 35(c) motion before he received the August 2021 letter

from his plea counsel explaining that counsel had failed to file a

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Crim. P. 35(b) and that, based on this failure, plea counsel believed

Shockey had a meritorious Crim. P. 35(c) motion. But he must still

account for the additional year delay after receiving that letter. See

id. at 441. That’s where his petition and supplemental petition fall

short.

¶ 13 To account for the delay between August 2021 and August

2022, Shockey explained in his pro se petition that he had only

recently found out about the time limits to file a Crim. P. 35(c)

petition and that he was “law dumb.” His postconviction counsel’s

supplemental petition didn’t provide much more information on this

issue or cite any applicable case law.1 The supplemental petition

merely explained that Shockey filed his petition a year after getting

plea counsel’s letter for the following three reasons:

1. Even though plea counsel’s letter said that Crim. P. 35(c)

forms were attached, Shockey “never received the forms.”

1 Postconviction counsel cites only one case — Swainson v. People,

712 P.2d 479 (Colo. 1986). But after explaining in detail the facts
of the case, she doesn’t explain why it’s analogous to the facts here.
In any event, Swainson addresses the time bar to filing a
Crim. P. 35(b) motion, not a Crim. P. 35(c) motion, as is applicable
here. See id. at 480-81.

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2. Shockey is “law illiterate” and “needed assistance” to file

the petition, and he didn’t receive such assistance until

an unspecified time in 2022 when he met with an

attorney who was representing him in a different case.

1. Shockey didn’t “have access to the law library at the

Colorado State Penitentiary Facility, where he resided.”

¶ 14 Assuming these assertions are true, as we must, they don’t

establish justifiable excuse or excusable neglect. Taken together,

his contention from his pro se petition and his first and second

contentions from his supplemental petition amount to an argument

that the court should have excused his untimeliness because he

didn’t understand the law and didn’t receive adequate legal

assistance. But “[i]gnorance or misunderstanding of the law and

lack of legal assistance does not excuse the late filing of a Crim. P.

35(c) motion.” People v. Green, 36 P.3d 125, 128 (Colo. App. 2001).

¶ 15 Shockey’s third contention — that he didn’t have access to his

prison’s law library — doesn’t fare any better. The entirety of his

assertion of lack of access to the law library is as quoted above. In

his supplemental petition, he doesn’t explain when he didn’t have

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access to the law library.2 Nor does he explain why this unspecified

lack of access impeded his ability to file his Crim. P. 35(c) motion

for more than a year after he received plea counsel’s letter. After

all, that letter gave him all the information he needed to plead his

claim (including where it should be sent) and, in that letter, plea

counsel offered to provide further assistance. Neither the petition

nor the supplemental petition contains any factual allegations

concerning any efforts that Shockey made to promptly and

diligently follow up on the information that plea counsel provided to

him in August 2021. Simply put, Shockey’s assertion of lack of

library access is too bare and conclusory to establish why he waited

a year after receiving plea counsel’s letter to file his petition. See

People v. Venzor, 121 P.3d 260, 262 (Colo. App. 2005) (“[I]f the

claims are bare and conclusory in nature, and lack supporting

factual allegations, the motion may also be denied without a

hearing.”).

2 On appeal, Shockey asserts that he didn’t have access to the law

library because of COVID restrictions. Because he didn’t present
this argument to the postconviction court, we decline to consider it.
People v. Goldman, 923 P.2d 374, 375 (Colo. App. 1996).

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¶ 16 We therefore agree with the postconviction court’s conclusion

that Shockey failed to assert facts that, if true, established

justifiable excuse or excusable neglect. And because we conclude

that Shockey failed to justify the late filing of his petition, we need

not reach the issue of whether Shockey adequately alleged prejudice

(or his contention that prejudice can be presumed under these

circumstances). See People v. Kadell, 2017 COA 124, ¶ 39 (noting

that if a court finds no justifiable excuse or excusable neglect that

excuses an untimely Crim. P. 35(c) filing, then the court need not

reach the merits of the ineffective assistance of counsel claim).

IV. Disposition

¶ 17 The order is affirmed.

JUDGE TOW and JUDGE LIPINSKY concur.

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